One more thing: You’re not an attorney. You are clueless when the judges ask why you didn’t do something the rules demand.
This is not a scenario from some morbid novel but future reality as intended by the Florida Supreme Court. It is as wrong as wrong could be.
The court has proposed a rule change to allow death-sentenced inmates to represent themselves or drop their appeals entirely. Either case would require a judge’s finding that they were competent to make the choice. Self-representation is forbidden now by a rule the court adopted 5-2 in 2014. But respect for precedent walked out the door with 3 justices who had to retire in January 2019 for being older than 70.
The court has also asked for comments on whether it should do away with automatic appeals, as provided by an existing rule, of judicial decisions to allow death row inmates to abandon their cases or discharge their attorneys. The court is likely to make that change too.
In effect, it is proposing to encourage state-assisted suicide. That is ghastly, and the court should come to its senses.
In uncommon alliance, 5 prosecutors as well as defenders have urged the court not to allow death row inmates to represent themselves. Also opposed is the Department of Corrections, citing profound difficulties in providing those maximum-security prisoners with computers, internet access and the opportunity to take depositions from witnesses.
The rules changes would apply to the stage of a death case after the Supreme Court has upheld the conviction and sentence. The inmate is then entitled to file what’s called a collateral appeal, raising questions about the fairness of the arrest and trial or asserting newly discovered evidence. These are first heard in the circuit court where the case was tried.
The procedural rules and precedents are so numerous and unforgiving that even highly experienced lawyers sometimes have trouble complying with them. Those errors can be fatal to clients.
The good rule the court wants to scrap was adopted in the course of reforms that were intended to bring about swifter conclusions to death row appeals, which can last for decades. By 2014, the court had long since required lawyers with specialized experience to represent defendants at murder trials. The new rule extended that to the postconviction stage.
As the majority said at the time, quoting from an earlier case, “we recognize that we have a constitutional responsibility to ensure that the death penalty is administered in a fair, consistent and reliable manner, as well as having an administrative responsibility to work to minimize the delays inherent in the postconviction process.”
Florida has 324 condemned prisoners; 9 have been on death row since the 1970s. The last 10 who were executed had been there an average of 26 years, including 1 for 34 years and another for 33. The pace of executions has slowed recently to roughly 2 a year, and there have been none since August 2019.
We asked an experienced death row defender who’s not involved in the case to explain why the court shouldn’t adopt the proposed rules. The lawyer spoke on condition of anonymity:
“If you add that a high percentage of death row prisoners are mentally ill before [death] row and, if not, become so after a few years, the proposal is a naked attempt to reduce caseloads and expedite the killing in the guise of ‘permitting’ the prisoner freedom to exercise their choice.
“Add how difficult hyper-technical post-conviction is even for lawyers, this choice is doomed from the start.”
That criticism isn’t overly harsh given what the court’s conservative majority, deliberately constructed by Gov. Ron DeSantis’ appointments, has already done with the death penalty.
In January 2020, it overturned its own recent precedent to say the Constitution doesn’t require a jury to be unanimous in recommending the death penalty. That decision applies, for now, only to some old cases because the Legislature had made unanimity a requirement.
11 months later, it overturned its own commitment, dating to 1975, to review every death sentence for proportionality — that is, to see whether it was justified in the light of others. That had been a crucial point in its decision to uphold the 1972 law.
Justice Jorge Labarga dissented in both cases.
The court should be restricting executions rather than encouraging them. Nearly half a century of experience has shown that the death penalty cannot be carried out fairly. During that time, 30 people who were or had been on Florida’s death row have been exonerated, many as the result of collateral appeals.
In announcing a docket and setting oral arguments for Feb. 10, the court did not say why it proposes to allow more death row prisoners to represent themselves.
But the record shows that Chief Justice Charles Canady and Justice Ricky Polston dissented to the ban that the court adopted in 2014. They did not say why.
Source: The Sun Sentinel, Editorial Board, December 31, 2021. The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, and Editor-in-Chief Julie Anderson. Editorials are the opinion of the Board and written by one of its members or a designee.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde